Same-sex marriage III: The arguments against

Posted Thu, November 29th, 2012 12:05 am by Lyle Denniston

This is the third of four articles explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage. The Court is scheduled to consider ten petitions on that issue at its private Conference tomorrow. This article discusses the legal arguments against same-sex marriage. The final article tomorrow will discuss the options the Court has in considering the cases. The first article in this series can be found here, and the second article is here.

Analysis

Marriage is an institution so valued in virtually every society, modern or ancient, that it always has been easy to rally public support against challenges to it. The ferv0r of that defense has been obvious, across the country, in recent years, especially since 1993, when the Hawaii Supreme Court signaled that same-sex couples in that state might soon gain a right to marry, under the state constitution. No state had previously even hinted at that, and the reaction of defenders of marriage was swift and widespread. As a result, the change did not happen in Hawaii, and would not, in any state, until Massachusetts’ highest state court opened marriage to same-sex couples, nine years ago this month.

The Hawaiian hint, of course, ran counter to a traditional understanding about marriage. A state court in New York would remark later: “It was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Changing that understanding has been seen, in many quarters of society, as a threat to marriage itself, and, with it, a threat to society’s capacity to renew itself generation after generation. Same-sex marriage, some would and did argue, was nothing less than a suicide pact for humanity.

That understanding had been so well established that, in 1972, it would be entirely unremarkable that the Supreme Court would conclude that a gay couple’s challenge to a traditional marriage law did not even raise “a substantial federal question.” That was the Justices’ brief and apparently unanimous ruling in the case of Baker v. Nelson, and that ruling reverberates still, regularly cited by marriage defenders with the argument that it is the Court’s binding last word on the subject.

In fact, if the Supreme Court were to conclude in one or more of the new same-sex marriage cases now on its docket that Baker v. Nelson did, indeed, settle the matter, that might well be the end of gay marriage equality as a constitutional matter — at least for the next several years, and perhaps longer. The current status of that precedent is thus one of the first questions the Court probably would need to answer before moving on to any other arguments, for or against same-sex marriage.

The Baker argument of marriage defenders is a simple one: that it is a precedent set by the Court, and it cannot be set aside unless the Court itself does so. As the lawyers for the Republican leaders of the U.S. House of Representatives told the Justices in a filing in one of the new cases: “Baker controls this case….Baker stands for the proposition that a state may use the traditional definition of marriage without violating equal protection. It necessarily follows that Congress may use the same traditional definition of marriage for federal purposes without violating equal protection.”

Since the constitutional core of the argument of advocates of same-sex marriage is the guarantee of “equal protection,” a new Supreme Court ruling interpreting Baker as broadly as the House GOP leaders do would undercut the legal foundation of the claim to marriage equality. Indeed, that is why federal courts that have struck down laws against same-sex marriage have done so only after first treating the Baker precedent as narrow in scope, and not binding in the new cases.

Marriage defenders have another basic point to make to the Justices: their argument that laws seeking to preserve the traditional concept of marriage should be judged by the most tolerant constitutional test, “rational basis.” (The first article in this series, found here, discussed that standard-of-review issue, and noted the marriage defenders’ position in favor of a rationality test alone.)

When the marriage defenders move beyond their point about Baker‘s force as controlling precedent, their arguments on constitutional questions go back to the same root: the Constitution, they contend, does not forbid the government, at any level, from taking steps to preserve marriage in its traditional form. Indeed, their lawyers insist that opposition to same-sex marriage has no source in discrimination, but rather is a positive effort to assure that the social values served by marriage go on being served by that institution. Those values depend, they insist, upon marriage being limited to one man and one woman.

The point that they emphasize most heavily, about opposite-sex marriage, is the necessary link they say exists between marriage and child-bearing and child-rearing. They quote the English philosopher and social critic Bertrand Russell: “But for children, there would be no need of any institution concerned with sex….It is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.” That institution, of course, is marriage, opposite-sex marriage.

As recently as two years ago, marriage defenders’ lawyers could say in court filings that “every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing.” (Included among the courts making that connection was the Minnesota Supreme Court, in the decision left undisturbed by the Justices in Baker v. Nelson in 1972.) And, the defenders argue, more than three-fourths of the states still adhere to the traditional definition of marriage, confining same-sex marriages to the status of a novelty in little more than a handful of states.

Although more recent federal appeals court rulings at both the appeal and trial levels have struck down traditional marriage-definition laws, and similar laws have been set aside in a few more states recently, it remains true that there is a considerably longer list of decisions upholding such laws. That is likely to be among the arguments the defenders of marriage will be making to the Justices.

On the merits, though, the marriage-children link is still the heart of their argument against same-sex marriage. It is founded in historical, legal, scientific and cultural principles.

Marriage, the defenders contend, cannot possibly be treated as a “fundamental right” open to gays and lesbians because such a right must have a foundation in American history, legal traditions, and practices. It has, they say, none of those characteristics; it was unheard of in law until 2003, and can make no claim to being common even today. At the time the nation was founded, and at the time the Fourteenth Amendment was added to the Constitution in 1868, it was clearly understood that marriage was the union between one man and one woman, the defenders assert. Those historic foundations of the definition should count heavily today in interpreting what the Constitution permits or demands, they argue.

The “responsible procreation” branch of their marriage-children link is keyed to what they call “the undeniable biological reality” that opposite-sex unions, and only those, can produce children. It is better, they argue, that children be born into a stable union that only marriage can create, and it is marriage that is the foundation of America’s — and the world’s — enduring family units. Children, the marriage defenders contend, prosper better with parents of opposite sexes — a father and mother — because they derive unique values from such parents, and because marriage encourages the parents to remain together while the children mature.

Many laws, they argue, are enacted and enforced precisely to encourage the continuation of marriage and the fulfillment of its obligations. Such laws assure that marriages are between two, rather than several, individuals, that the commitment is meant to last for lifetimes, that the partners remain loyal to it, and that the father is presumed to be the father of the child whose mother is his wife. Those laws cannot even be understood, it is argued, unless they are seen as strengthening the responsible birth and rearing of children.

Marriage, its defenders concede, is not conditioned upon having children, because that by itself would be unconstitutional state coercion. But opposite-sex couples may, indeed, become parents by accident, and that is a potential that same-sex partners could never experience, they note.

To the argument that the Supreme Court’s 1967 decision in Loving v. Virginiavalidated the idea that traditional marriage could not be limited to traditional marital partners, the marriage defenders counter that that ruling, too, promoted procreation by opening up the prospect of children of mixed-race being raised within a stable family unit. Moreover, they contend that the decision would have come out the other way, had the couple involved been of the same sex, since only five years later, the Supreme Court decided Baker v. Nelson, and the gay couple in that case had tried to claim the Loving decision as a precedent in their favor.

Whatever virtues the supporters of same-sex marriage can claim for such unions, the defenders of traditional marriage argue, those cannot compare with those that justify the protection and promotion of traditional marriage, and those who pass the laws of a state — including its citizens in voting on ballot measures — are clearly entitled to choose the definition of the institution that they find to be superior.

Further, the defenders say, it is essential — in a time when traditional cultural and moral values are being tested — that legislatures be allowed to proceed with caution before fundamental alterations are made in the institution of marriage. Such changes should await more scientific certainty about child-bearing and child-rearing outside of traditional marital unions, and also should await the development — if there is to be one — of a different public consensus about whether or not to protect marriage as it has been known for countless years. The defenders buttress this argument about caution with a fervent defense of the power of the individual states, the long-time source of laws about marriage, to make their own judgments about who can enter that institution.

Perhaps the most controversial argument that the defenders make is that the institution itself would be harmed if it were opened to same-sex couples. They have relied upon social science claims that, merely by altering the definition of marriage, such a change cannot help but alter its basic character. The public’s conscious understanding of what marriage is, and is supposed to be, would surely be altered, the argument goes, if a new form of marriage were to have the official blessing of government. The reality that one cannot predict just what would happen to marriage if the popular perception of it were to change in a basic way, the defenders say, is reason enough not to risk that potential development.

Accelerating rates of divorce, the defenders add in another argument, have already begun the process of “deinstitutionalizing” marriage, so that marriage’s standing among the social norms of America already is suffering, and would suffer further if its traditional character is compromised for those who remain in their legal unions.

To the argument that a string of Supreme Court rulings recognizing gay rights and providing constitutional protection for gays and lesbians bolsters the idea that the string should be extended to include marital rights, the marriage defenders argue that the Court has given no hint whatsoever that it is willing to take that much greater step constitutionally. Those decisions, the defenders of marriage contend, were about government intrusions into private lives, not about access to a state-conferred benefit that the legislature has chosen to limit for entirely valid social and cultural reasons.

And to the argument that excluding gays and lesbians from civil marriage is motivated by religious or moral reasons that legislators are not supposed to put into public laws, the marriage defenders respond that the mere fact that the traditional definition has, for some who support it, a religious or moral dimension does not make it constitutionally suspect. And, to make that point, their lawyers have recited quotations from President Obama, in a 2006 address, in which he said that “our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.”

When marriage defenders turn to the federal law that is now at issue before the Court, the Defense of Marriage Act of 1996, they add arguments that Congress was entitled to craft a uniform definition to guide all government agencies to a common understanding, that Congress was free to express a moral judgment about the kind of marital unions it wished to support, and that Congress had it in its power to limit those who would qualify for federal benefits linked to marriage, in order to save federal funds.

A final argument, one that marriage defenders hope might ultimately be persuasive for the Supreme Court, is that the issue of same-sex marriage should be left, as much as possible, to be worked out in the democratic process. It is there, they contend, that the people of America can best make a judgment about something so fundamental to their lives.

Tomorrow: Part IV, the final article, on the options the Supreme Court faces.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.